WHAT STANDARDS SHOULD BE APPLIED IN AL QAEDA MEMBERS' WAR CRIMES PROCEEDINGS?:
Lessons From The Nuremberg Trials

Any day now, we will know that the first stage of the war on terrorism is over, when the war crimes trials begin. Yet there is still controversy over President Bush's proposal to convene military tribunals. Especially contentious is the question of what standards of law should apply in bringing members of the Al-Qaeda terrorist network, some of whom may be presently detained at Guantanamo Bay, to justice.

Some in the Administration contend that the adjudication of terrorist offenses raises a case of first impression. Because Al-Qaeda detainees are not state actors, the Administration and its supporters argue that they stand "outside" the ordinary law of war - which was created with nation-states, not rogue terrorist groups, in mind.

This controversy over what law to apply in the trials of alleged terrorists is no legalistic technicality. To the contrary, the choice of the applicable standards will be hugely influential - for in adjudicating allegations of terrorism, the aim is not merely to do justice in the individual case, but also to delegitimate terrorism around the globe.

These post-war trials are not really without precedent, despite the Administration's claims. After all, the United States has experience in doing justice after other wars. And history teaches us that, in the past, the U.S. ably reconciled fairness and due process concerns - within the framework of military justice - while at the same time satisfying the international rule of law. The postwar trials at Nuremberg are particularly instructive in showing how this can be done.

Nuremberg: Military Justice With Civil Justice Safeguards

After World War II, at Nuremberg, the goal was not just to bring the Reich's top guard to justice, but to delegitimate Nazism for all time in the eyes of the international community. Just as President Bush currently seeks a worldwide consensus against terrorism, so too did those who conducted the Nuremberg trial seek to ensure that Nazism and its evils could never happen again.

It is often forgotten that Nuremberg was a military, not civil tribunal. (Indeed, it was known as the "International Military Tribunal at Nuremberg"). That may be because the tribunal, despite its military nature, nevertheless incorporated many of the important safeguards associated with civil justice.

The Lessons Of Nuremberg: High Due Process Standards to Confer Legitimacy

More than a half-century later, Nuremberg's pragmatic innovations stand as the basis for the international rule of law. Some basic lessons can be drawn from the Nuremberg trials, and used as guidance for trials of alleged Al-Qaeda members.

First, to every extent possible, justice should be fair and regular. The goal is delegitimation and deterrence of terrorism, and for guilty verdicts to mean anything, they must be the result of fair - and visibly fair - procedures.

Due process standards should aim high, and represent shared standards of fairness and decency. Using purely military procedure at Guantanamo is more problematic than doing so in Afghanistan itself. The more removed the terrorist trials are from the military context, the more unfair the turn to purely military procedure will appear.

Nuremberg's procedural innovations involved a pragmatic mix of civil and common law criminal procedure, which adhered to shared understandings about the rule of law. As at Nuremberg, the right to counsel of the defendant's choice and the right to appeal should be respected at trials of alleged Al-Qaeda members. (In all of the post World War II military trials, save that of the ringleaders, procedures were provided for post-conviction review.)

So should the right to public trial. Nuremberg shows that that military trials can be conducted fairly, and in public. In exceptional cases raising security interests, selected evidence can be sealed, and oral arguments, at least, made public. Public hearings will only enhance legitimacy in the world's eyes.

And what is most terrifying about the crimes in question, as the U.N. General Assembly Resolution against Terrorism recognizes, is precisely "that they provoke a state of terror in the general public." Therefore, even if conducted by military courts, to every extent possible, the proposed trials should follow civilian procedure, and be directed at a general audience - indeed, at a world audience. The administration of justice should both comfort and warn, as it did in Nuremberg, and for that to happen, public trials are necessary.

More Lessons From Nuremberg: Personnel and Charging Decisions

Again following Nuremberg's model, the proposed trials should, to the extent possible, deploy civilian personnel. At Nuremberg, the American judges and prosecutors were among the most distinguished jurists of their day. For example, the U.S.'s Chief Prosecutor was Supreme Court Justice Robert Jackson. Recognized and honored personnel will support the trials' credibility.

In addition, the charges against the defendants should fit the crime, and the indictments setting out the charges should clarify the basis for American military intervention combating terrorism.

Today, Nuremberg is remembered less for its adjudication of war crimes and more for the adjudication of charge of "the crime against humanity," the persecution of civilians. This human right has become a fundamental principle of international law. A right against terrorism could be similarly enshrined - but only if the Al-Qaeda trials, like the Nuremberg trials, are conducted openly and honorably, with the concept of "terrorism" defined with specificity.

So far, however, there is only ambiguity about the offense of terrorism. Indeed, in the proposed military commission rules, the antiterrorism charges have yet to be defined. The proposed rules simply provide that a person can be tried for violations of "the laws of war and other applicable laws," with respect to "acts of international terrorism."

Yet what, precisely, are "acts of terrorism"? They are nowhere defined. Membership in Al-Qaeda does not, by itself, necessarily constitute a violation of the law of war - so once a particular defendant's membership is proven, an additional showing must be made.

What showing? It is still up to Congress to define what that showing must be, and to authorize the prosecution of terrorism even when it cannot be reached by the current laws of war.

Congress should act as soon as possible, to ensure that the defendants are properly charged with specifically defined crimes.

Making a Historical Record For Future Generations

Finally, the terrorist trials should establish a lasting record. To this day, the trial record created at Nuremberg remains the leading historical record of the Nazi-era destruction.

The war against terrorism is waged against an enemy that attempts to hide all of its traces. As a result, establishing a record will no doubt be more of a challenge. Yet the nature of terrorism makes the creation of such a record all the more important; it is necessary to bring what is hidden out into the open.

Can military tribunals bring terrorists to justice and delegitimize global terrorism fairly and persuasively? America's history of postwar justice shows they can. But if we fall short of that history - and of the salutary model of Nuremberg - we may not achieve the global consensus against terrorism that currently exists with respect to "crimes against humanity," thanks to Nuremberg.